0120072154
10-29-2007
Michael W. Ahearn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael W. Ahearn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072154
Agency No. 4B-018-0090-03
Hearing No. 520-2006-00164X
DECISION
Complainant timely initiated an appeal from the final agency decision,
concerning his equal employment opportunity (EEO) complaint claiming
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the relevant time, complainant was employed as a Letter Carrier
at the agency's Lowell Post Office in Lowell, Massachusetts.
On October 8, 2003, complainant filed the instant formal complaint.
Therein, complainant claimed that from June 18, 2003 to the present,
he was subjected to an ongoing pattern of harassment by his supervisor
on the basis of age (D.O.B. 12/01/47) when:
(1) he was stared at in his case; his street performance was monitored;
he was informed he could no longer use his residence as a comfort or
rest stop; his requests for auxiliary assistance were questioned; and
he was spoken to in a hostile and aggressive manner, which forced him
to use leave during the period of June 28, 2003 through July 17, 2003;
(2) on September 4, 2003, he was placed in Emergency Off Duty Status
without pay; and
(3) on September 19, 2003, he was issued a Letter of Warning, charging
him with failure to satisfactorily perform his duties as a carrier by
exhibiting unacceptable conduct/failure to follow instructions.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Thereafter, the agency filed a Motion to Dismiss.
In its motion, the agency requested that the AJ dismiss complainant's
complaint because he filed a civil action in the United States District
Court for the District of Massachusetts concerning the same issues as
those raised in the instant formal complaint.
On September 8, 2006, the AJ granted the agency's motion, dismissing
complainant's complaint pursuant to 29 C.F.R. � 1614.109(b) and
29 C.F.R. � 1614.107(a)(3). The AJ found that complainant filed a
civil action concerning the same issues as those raised in the instant
complaint. The AJ noted that complainant, in his opposition to the
agency's motion, argued that he did not file a civil action referenced
in the motion, but instead had filed a motion to amend his civil
action to withdraw, without prejudice, his age discrimination claim.
Specifically, complainant claimed that he "was confused and mistakenly
included his claim for discrimination on account of age before he had
exhausted his administrative remedies." The AJ noted that the agency,
in its reply, argued that although complainant may have withdrawn his
age discrimination claim from his civil action, he was still pursuing
the same claim of discrimination arising from the same treatment by his
supervisor from June 2003 as he is pursuing the civil action. The AJ
concluded that in his civil action, complainant was pursuing disability
and retaliation claims arising from an identical time period and series
of events as the age claim being considered by the AJ.
The record reflects that on October 10, 2006, complainant filed an appeal
with the Commission directly from the AJ's September 8, 2006 decision.
The record further reflects that the agency did not issue a final action
within 40 days of the AJ's decision.1 Therefore, the AJ's decision
became the final action pursuant to 29 C.F.R. � 1641.109(i).
The record reflects that on September 27, 2005, complainant filed
a civil action (identified as Civil Action No. 1:05-CV-11985-DPW)
in the United States District Court for the District of Massachusetts
(Boston). The record further discloses that the claims raised therein
are the same as those raised in the instant complaint. The regulation
found at 29 C.F.R. � 1614.107(a)(3) provides that a formal complaint
shall be dismissed if it is also the basis of a pending civil action
in a United States District Court. Commission regulations mandate
dismissal of the EEO complaint under those circumstances so as to prevent
a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October
25, 1998).
Accordingly, the agency's final action implementing the AJ's dismissal
of complainant's complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2007
__________________
Date
1 On March 6, 2007, the agency issued a final action implementing the AJ's
dismissal of complainant's complaint. In its final order, the agency
acknowledged that it received the AJ's decision on September 12, 2006,
but did not issue a final action until March 6, 2007, approximately six
months later.
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0120072154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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